14.3.0 Community-Based Vocational Training and Department of Labor Regulations |
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Louisiana Statewide Transition Project and Louisiana: Healthy and Ready to Work Fact Sheet Series |
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07/20/00 |
Employment is one of several
important adult outcomes often targeted by young adults with disabilities and
their families as part of the transition planning process. In order to prepare for successful
employment, young adults, both with and without disabilities, need access to a
variety of vocational preparation curricula, programs, and experiences. These vocational preparation opportunities
may include, but are not limited to: secondary curricula elective courses;
work-study or marketing education programs; School-to-Work; and non-paid community-based
vocational training experiences.
Studies have shown that
young adults with disabilities who experience paid and/or non-paid vocational
opportunities prior to graduating from high school are more likely to achieve
and maintain paid employment as a desired adult outcome. Improved employment opportunities for adults
with disabilities can result in a more favorable quality of life. As a result, it is important for young
adults with disabilities and their families to use the transition process to
ensure that vocational preparation opportunities, including community-based
opportunities as appropriate, meet their needs so that they can become
productive, contributing, and competitive members of their communities’
workforce.
Not too long ago, the existing U.S. Department of
Labor (DOL) guidelines that defined “employees” for purposes of applying the
requirements of the Fair Labor Standards Act (FLSA) did not specifically
address community-based education programs for students with disabilities. In order to assist program administrators in
developing, implementing, and evaluating programs and/or in making placements
that do not create questions about the establishment of an employment relationship
between the students and participating businesses in the community, the
Employment Standards Administration of the DOL and both the Office of
Vocational and Adult Education and the Office of Special Education and
Rehabilitative Services of the U.S. Department of Education (DOE) developed guidelines. These guidelines are designed to facilitate
and support the transition of young adults with disabilities from school to
employment within their communities, while ensuring that protections afforded
by the FLSA to program participants, employees, employers, or programs
providing rehabilitation services to individuals with disabilities are not
jeopardized or compromised.
As a result, the United States DOL and the United
States DOE now have agreements that govern transition into employment for young
adults with disabilities. The DOL and
DOE have collaborated to promote opportunities for community-based vocational
preparation for students with disabilities, while assuring that applicable
labor standards protections are strictly observed and enforced. As a result, local education agencies (LEAs)
must follow fair labor standards when providing vocational experiences to
students. The DOL and the DOE have set
forth the following guidelines:
Where ALL of the following criteria
are met, the U.S. Department of Labor will NOT
assert an employment relationship for purposes of the Fair Labor Standards Act.
· Participants will be youth with physical and/or mental disabilities for
whom competitive employment at or above the minimum wage level is not
immediately obtainable and who, because of their disability, will need
intensive on-going support to perform in a work setting.
· Participation will be for vocational exploration, assessment, or
training in a community-based placement work site under the general supervision
of school personnel.
· Community-based placements will be clearly defined components of
individualized education programs developed and designed for the benefit of
each student. The statement of needed
transition services established for the exploration, assessment, training, or
cooperative vocational education components will be included in the students’
Individualized Education Program (IEP).
· Information contained in a student’s IEP will not have to be made
available; however, documentation as to the student’s enrollment in the
community-based placement program will be made available to the Departments of
Labor and Education. The student and
the parent or guardian of each student must be fully informed of the IEP and
the community-based placement component and have indicated voluntary
participation with the understanding that participation in such a component
does not entitle the student-participant to wages.
· The activities of the students at the community-based placement site do
not result in an immediate advantage to the business. The Department of Labor will look at several factors.
1. There has
been no displacement of employees, vacant positions have not been filled,
employees have not been relieved of assigned duties, and the students are not
performing services that, although not ordinarily performed by employees,
clearly benefit the business.
2. The
students are under the continued and direct supervision by either
representatives of the school or by employees of the business.
3. Such placements
are made according to the requirements of the student’s IEP and not the labor
needs of the business.
4. The periods
of time spent by the students at any one site or in any clearly distinguishable
job classification are specifically limited by the IEP.
· While the existence of an employment relationship will not be
determined exclusively on the basis of the number of hours, as a general rule,
each component will not exceed the following limitation during any one school
year:
Vocational
exploration 5 hours per job experienced
Vocational
assessment 90 hours per job
experienced
Vocational
training 120 hours per job
experienced
· Students are not entitled to employment at the business at the
conclusion of their IEP. However, once
a student has become an employee, the student cannot be considered a trainee at
that particular community-based placement unless in a clearly distinguishable
occupation.
It is important to understand that an employment
relationship will exist unless all of the criteria described in these
policy guidelines are met. (An
“employment relationship” is the term that the DOL uses when a student is no
longer working to learn, but is working and providing some immediate benefit to
the employer, for which the student should be compensated.) Should an employment relationship be
determined to exist, participating businesses can be held responsible for full
compliance with FSLA, including the child labor provisions. Businesses and school systems may, at any
time, consider participants to be employees and may structure the program so
that the participants are compensated in accordance with the requirements of
the Fair Labor Standards Act.
Students/Young Adults:
Young adults with
disabilities who are interested in working need to take active roles in
preparing for employment. Since
vocational training opportunities and experiences do not have to be limited to
typical or traditional classroom settings or situations, young adults need to
become aware of and to share their wants and needs so that individual training
programs can be developed. The
transition planning process can be used to identify and implement the most
appropriate type of vocational training program.
Participation in a
community-based vocational training program can be a practical and useful way
for young adults with disabilities to determine and/or to become more familiar
with their preferences, likes, aptitudes, and training and support needs. Student-specific information obtained though
participation in a community-based vocational training program can assist young
adults and their families to identify and reach career goals.
Families:
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The development and dissemination of this document
were supported in part by funds from the U.S. Department of Education
(Cooperative Agreement #H158A6007, “The Louisiana Statewide Transition
Project: A Multi-Constituency Model”) and the U.S. Department of Health and
Human Services, Maternal and Child Health Program (Grant MCJ-22HRW6,
“Louisiana: Healthy and Ready to Work”). The opinions expressed herein are
solely those of the authors and do not necessarily reflect the policy or
position of the U.S. Department of Education or the U.S. Department of Health
and Human Services, and no official endorsement by either of these two
agencies should be inferred. The LSUMC does not discriminate on the basis of race, color,
national origin, sex, religion, age, or disability in employment or the
provision of services. This document may be duplicated and disseminated in its original
form without obtaining permission. Alternate forms of this document are available upon request at 1-888-942-8104 or TDD 1-504-942-5900. |
One outcome of participation
in any vocational preparation opportunity should be that young adults with
disabilities become more aware of their strengths, as well as their training
and support needs. Since there is a
variety of vocational preparation curricula, programs, and experiences in which
their sons/daughters may participate, families can play a vital role by helping
to determine which of the options, or which combination of options, best meets
the needs of their sons/daughters.
Through consistent and informed participation as members of their
sons’/daughters’ IEP Teams, families can help promote and support the
development and attainment of appropriate career goals.
Agencies:
Agencies are required to
comply with the joint DOL and DOE guidelines established for community-based
vocational training programs and with the FLSA. Young adults with disabilities and their families need to be
included in the discussions and decisions regarding job classifications and
training sites. In addition, young
adults and their families need to be fully informed about the placement and the
extent of participation and that compensation is not due under a non-employment
relationship. Through a community-based
vocational training program release form, young adults with disabilities and
their families can document voluntary participation. There needs to be clear documentation in each participating
student’s IEP regarding: the young adult’s educational/vocational needs; the
benefits of this particular training experience in terms of job classification
and site selection; the training goals/objectives; time frame targeted for the
training experience (beginning/ending dates and frequency); and a letter of
agreement, signed by all parties, that outlines the joint DOL and DOE
requirements. Designated
representatives of the LEA should review the training guidelines with the
participating businesses, discussing who is responsible for which areas of
compliance and clearly defining lines of supervision. It is the responsibility of the LEA to ensure that the students
have the opportunities to experience the activities and responsibilities related
to their vocational goals/objectives and to collect data and case notes to
document students’ performance and progress.
Finally, program compliance with the criteria for non-employment
relationships must be fully documented and made available to the DOL as
requested.
IV. RESOURCES/CONTACTS
Meeting the Needs of Youth
with Disabilities: Handbook for Implementing Community-based Vocational
Education Programs According to the Fair Labor Standards Act (Second Edition) ($8/handbook)
National Transition Network
Institute on Community
Integration’s Publications Office
(612) 624-4512
U.S. Department of Labor
Southwest Regional Office,
DOL
(214) 767-6895, Ext. 242
http://www.dol.gov/
V. REFERENCES
RITIE
(Rhode Island Transition Independence Employment). (April 1999). Transitions.
Providence, Rhode Island: Rhode Island College.